The double travesty of the Windsor Framework.
This betrayal of Brexit and Northern Ireland is to bypass a Commons vote
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Unless MPs have an eleventh-hour rediscovery of collective spine, this afternoon the government will betray all those who voted for the United Kingdom to rid itself of control by Brussels — and regain its independence to govern itself — by exiting the European Union.
The government intends to ram through the Commons its Windsor Framework, the compromise that Britain’s prime minister Rishi Sunak agreed with EU Commission president Ursula van der Leyen to resolve the intense difficulties arising from the Northern Ireland Protocol.
The Protocol, which was part of the Brexit deal agreed by Boris Johnson in 2020, was included to avoid destabilising the fragile 1998 “Good Friday Agreement”. That agreement has brought peace between the Republic of Ireland and Northern Ireland, which is part of the UK. But since the Irish Republic is in the EU, the Protocol created in effect a border between Britain and Northern Ireland down the middle of the Irish Sea — thus dismembering the United Kingdom.
Johnson’s Brexit deal was a bad mistake, as I wrote here at the time. But although the Windsor Framework will ease a number of logistical difficulties created by the Protocol, this is mere window-dressing to conceal the fact that it will keep the UK tied to the EU —with the potential for Brussels to tighten the screw still further.
I explained here earlier this month how the framework will perpetuate the de-facto border in the Irish Sea.
Caroline Bell is a pseudonymous senior British official who, during the titanic battle to deliver Brexit in the teeth of an all-out attempt to scupper it by the entire Remain-voting establishment — including a majority of MPs at that time — provided an authoritative and chilling insider’s running analysis of the lengths to which Theresa May’s government was going to sabotage the vote to leave the EU.
Now Caroline Bell has taken up the same dismal task once again. On the Briefings for Britain website, (s)he notes that the Framework will allow the EU to impose new rules and regulations on the UK government. It will also directly regulate certain UK traders outside Northern Ireland. Bell writes:
There are three new EU regulations to enforce the new rules agreed in the WF [Windsor Framework] on GB-NI trade. EU regulations have direct effect in member states. But the UK is not an EU member state, and nor is Northern Ireland, even though NI is subject to the EU regulations listed in Annex 2 of the Protocol.
The EU’s new draft phytosanitary Regulation, “provides for specific rules for the entry into Northern Ireland from other parts of the United Kingdom of certain consignments of retail goods, plants for planting, seed potatoes and machinery and vehicles which have been operated for agricultural or forestry purposes as well as non-commercial movements of pet animals, and this can only be achieved by adopting a new Regulation of the European Parliament and of the Council.”
How on earth have government ministers swallowed this manifest untruth? The one thing the EU cannot do is legislate for the United Kingdom. Least of all when the legal basis for this new EU regulation is contained in Article 43(2), Article 114, and Article 168(4)(b) of the Treaty on the Functioning of the European Union – which no longer applies to the UK.
Worse still, the Framework grants
new rights under EU law for the EU to be consulted on UK goods and tax legislation to monitor competition risks with the Single Market”.
But as I wrote here, a key advantage of Brexit was that the UK would be free to pursue its own policies that would give it a competitive edge over the EU. The EU, however, exists to negate other countries’ competitive advantage over itself. Now Sunak has agreed to destroy that advantage in Northern Ireland.
Bell observes:
With the creation of new directly effective EU regulations (see below), the commitment to consult the EU on new UK legislation to monitor competition risks and to build physical border infrastructure in Northern Ireland, it is clear that the Sunak government has colluded with the EU to develop the Windsor Framework as a vehicle for alignment with, and even subjection to, new EU laws which fall well outside the scope of matters covered by the Withdrawal Agreement Act which implements the Protocol in the UK.
In a separate and important article here, Bell explains how the sting in the Windsor Framework is carefully disguised by scattering the details through multiple documents. She writes:
We have reached the utterly surreal position where, three years after Brexit, the entire UK will become subject to new laws made in Brussels with the stated aim of “protecting the UK’s internal market” and “Northern Ireland’s place in the United Kingdom”. Isn’t that the job of the British government and the sovereign UK Parliament?
Worst of all, this betrayal of Brexit — and of Northern Ireland — is to be pushed through Parliament without MPs even having the chance to vote on its provisions. There is to be a 90-minute debate; and then the government intends to use the Royal Prerogative to enact the Framework through secondary legislation without Parliament ever voting on the Framework as a whole.
This is a bitter irony indeed. In the seminal Miller judgment in 2017, the UK Supreme Court threw a giant Remainer spanner into the Brexit works by ruling that the government could not use Royal Prerogative powers to trigger the UK’s exit from the EU; the trigger could only be activated by a Parliamentary vote (and Parliament was dominated by Remainer MPs).
Yet now the government intends to deploy Royal Prerogative powers to up-end that bitterly fought-for exit from the EU, sign away the UK’s independent power to govern its own affairs and abandon Northern Ireland in a constitutional no-man’s land by undermining its status within the UK — a status for whose defence so many have paid in blood.
And so what of the MPs whose powers are to be truncated in this way? What of those so-called “Spartans,” the Tory MPs who fought so desperately in those terrible years of the Brexit wars to deliver the independent self-government for which the British people had voted? Is Parliament going to allow this fresh travesty of democracy to happen?
All the signs are that it will. True, Northern Ireland’s Democratic Unionists have decided they can’t live with the Framework and will oppose it. There are also indications that sundry diehard Tory MPs and even some Cabinet ministers will oppose it, too.
But in general, MPs are exhausted by the awful Brexit battle. People have long moved on. They want this to be over, once and for all. More to the point, they don’t think a better deal with the EU can be achieved.
That is almost certainly true. The only alternative, therefore, is the nuclear option: to negate the Protocol altogether, as Boris Johnson has consistently proposed and for which a bill has been parked somewhere in the parliamentary works.
But the objection is that this would cause the UK to breach international law. That is a serious objection. A country should honour its international obligations.
There is, however, a sound moral case for the UK to break this one. The Protocol “Trojan horse” was Boris’s Johnson’s doing. As some of us said at the time, the UK should have left the EU without an exit deal at all, since any deal agreed with the EU would inevitably leave the UK at its mercy in some way.
But at the time, Johnson was between the devil and the deep blue sea. Parliament simply wouldn’t have voted for a no-deal exit. So to fulfil his democratic obligation to deliver Brexit, Johnson had a metaphorical gun to his head. The result was the Protocol.
If someone being threatened by a protection racket is forced to choose between someone else’s money and his life, few would expect him to forfeit his life, even though he may have to pay a penalty for his misdeeds. In similar vein, the Protocol should not be regarded as an agreement freely entered into. To hold that such a coerced measure should be adhered to even though this would cause tremendous damage to Britain’s national interest — rather than break it and pay an appropriate penalty for doing so — is perverse and unjust.
This, though, is all academic. Rishi Sunak is determined not to negate the Protocol. How he would react, however, in the face of a serious Tory rebellion is unknown.
So unless MPs find some spine in the next few hours, this is how the great popular revolt to regain Britain’s sovereign and democratic independence will end — not with a bang but a whimper, as the EU and its British Remainer allies rub their hands in triumph.
